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Fifth Circuit Overturns Decision Holding State Agency Liable for ESA Violations

The Fifth Circuit Court of Appeals on June 30, 2014 overturned a lower court decision previously holding the State of Texas liable for the taking of whooping cranes that died allegedly as a result of reduced freshwater inflows to their habitats. The Aransas Project v. Shaw, No. 13-40317. Reviewing liability generally under Section 9 of the Endangered Species Act, and particularly the proximate cause concept embodied therein, the Court concluded: “Finding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far.” The lower court had found the Texas Commission on Environmental Quality (“TCEQ”) liable under the ESA and enjoined TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where the cranes make their winter home. The Fifth Circuit found “the district court’s opinion misapplies proximate cause analysis and further, even if proximate cause had been proven, the injunction is an abuse of discretion.” The ruling is one of only a handful of cases addressing so-called “vicarious liability” for states and local permitting authorities that authorize activities that result in the death or injury of protected species. The decision stresses the import distinction between “but for” causation and “proximate cause” which requires an element of foreseeability. In this case, the Circuit Court concluded the permitting authority could not have reasonably foreseen the consequences of its actions on cranes and, therefore, could not be held liable.